mcphail-sharing a life.pdf - Robson Hall Faculty of Law

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114 MANITOBA LAW JOURNAL VOL 31 NO 1 The amendments in Bill 53 apply to both same-sex and opposite-sex common-law partners. So long as they register or have cohabited for the required time period, the amendments will apply to all common-law couples who are cohabiting on 30 June 2004. The amendments do not, however, apply to relationships that ended (from death or breakdown of the relationship) before Bill 53 came into force on 30 June 2004. B. Why doesn’t the same period of cohabitation apply in all Acts? While the criteria for determining whether a common-law relationship exists has been made as consistent as possible insofar as Acts of the same nature are concerned, one standard set of criteria for all Manitoba legislation was not feasible. A shorter time period was considered reasonable for some provisions (e.g. those dealing with conflicts of interest for public officials or the determination and payment of social assistance benefits), while a longer period or factors evidencing a more committed relationship was reasonable for others (e.g. sharing of family property). In addition to the policy objectives for certain provisions, effort was made to ensure that existing rights were not eliminated (e.g. the ability to seek support after one year of cohabitation where a couple has a child; entitlement to benefits under pension legislation after one year of cohabitation). C. How is a common-law relationship terminated? Bill 53 also contains provisions dealing with “termination” of common-law relationships. Termination of a common-law relationship is not the same as separation, but a concept comparable to a divorce between married spouses. Just as some property and family laws stop applying to spouses once they separated or divorced for a certain period of time, the new laws take into account separation of common-law partners and termination of common-law relationships. The termination date affects some rights, such as the time within which a partner can apply to court for an accounting and equalization of family property. Some rights and responsibilities continue beyond termination, while others end when cohabitation ceases. A common-law relationship that has been registered with the Vital Statistics Agency can only be terminated by registering a “dissolution” once the couple has lived apart for at least one year. Dissolution can be done jointly, or by one party alone after formal notice is given to the other. Again, partners will be able to obtain a certificate from Vital Statistics attesting to the fact their registered common-law relationship has been terminated. If a common-law relationship was never registered, it can only be terminated by the passage of time. In most cases, this is three years of living apart.

Rights and Obligations of Common-Law Partners 115 D. What about conflicts? By extending property rights and obligations to common-law partners, there will sometimes be conflicts between two or more claimants. Some of the Acts set out a priority scheme to address these conflicts. The Homesteads Act gives priority to the first spouse or common-law partner to acquire rights, until those rights are dealt with or resolved. Claims for an accounting and equalization of property under The Family Property Act 18 are based upon the period of time individuals cohabited as common-law partners and/or married spouses, as the case may be. Claims under that Act have priority over Intestate Succession Act claims. The Intestate Succession Act gives priority to the most current spouse or common-law partner. E. Opting Out These amendments do not prevent people from dealing with their property in a different way. A person can avoid the distribution scheme under The Intestate Succession Act by making a will. Like spouses, common-law partners can release their rights under The Homesteads Act. They can opt out of the property-sharing regime of The Family Property Act by entering into a written agreement opting out of the Act entirely or agreeing to a different distribution scheme. Opting out of Part IV (the after-death accounting and equalization provisions) requires specific wording. Opting out of the credit-splitting provisions of the pension acts 19 requires a written agreement, independent legal advice and receipt of a statement from the pension administrator. F. Other Information about The Common-Law Partners' Property and Related Amendments Act A summary of the impact of the amendments to each of the major property Acts appears in the next section. In addition, a list of all the Acts amended by 18 19 C.C.S.M. c. F25 The Chapter version of The Common-Law Partners' Property and Related Amendments Act (which incorporates amendments to the Bill made at the Statute Law Amendments Committee) can be accessed online at: http://web2.gov.mb.ca/laws/statutes /2002/c04802e.php. All of the proclaimed amendments in The Common-Law Partners' Property and Related Amendments Act will be incorporated in the electronic versions of the Acts in question and will be available online at: http://web2.gov.mb.ca/laws. Information respecting The Common-Law Partners' Property and Related Amendments Act and an electronic version of a public information brochure is also available on the Manitoba Justice website. These can be accessed at: http://www.gov.mb.ca/justice/family/familyindex.html (English) and http://www.gov.mb.ca/justice/family/familyindex.fr.html (French).

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